State v. Driver

• Citation: 78 N.C. 423
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 January 1878
• Parties: STATE v. GILES DRIVER.

78 N.C. 423

STATE

v.GILES DRIVER.

Supreme Court of North Carolina.

January Term, 1878.

PETITION for a Writ of Certiorari, filed by the defendant and granted at June Term, 1877, of THE SUPREME COURT.

The record states substantially;--On the 22d of May, 1877, the defendant caused a notice to be served by the Sheriff upon the Solicitor of the District of his intention to apply for a writ of certiorari, and on the following day a copy of his petition was likewise served. He stated in his petition that he had been indicted for an assault and battery upon his wife, committed in the month of June, 1876; that he pleaded guilty to the indictment and submitted to the judgment of the Court; that the evidence adduced was substantially that while under the influence of passion and the effects of ardent spirits, he whipped his wife with a switch in a field near his house, with such severity as to leave marks of the strokes of the switch visible on her arms and shoulders for two or three weeks, and at the conclusion of the whipping he gave her one kick; that his wife testified that at previous times while under the influence of liquor he had chastised her, but with much less severity; that he is advised that the judgment (which is set out in the petition) imposed on him is erroneous and illegal, and that he has the right to have the same reviewed; that he was unable to secure legal services until recently, by reason of his poverty, or to take the necessary steps to appeal, and ought not to be held guilty of laches in the premises; and he therefore asked that a writ issue to the Clerk of the Superior Court of Yadkin County, commanding him to transmit to this Court a full and complete transcript of the record in the case, and that said judgment be reviewed and reversed. The petition was verified by the oath of defendant, and the prayer thereof was granted by this Court at the last term by an order, which is as follows; “There are two questions involved, (1) is the sentence, five years imprisonment in the County jail, and then a recognizance with sureties in $500 to keep the peace for five years longer, in conflict with that provision of the Constitution which prohibits excessive fines and cruel or unusual punishments; (2) if it is, has this Court the power to review it. We forbear the expression of any opinion until the questions can be argued. The certiorari will issue according to the prayer of the petitioner.” In obedience to said order the Clerk of said Court on the 31st of December, 1877, sent a transcript of the record,--copy of the bill of indictment charging the assault, the verdict of guilty, and the judgment of the Court, that defendant be imprisoned for five years in the County jail and at the end of that term to enter into bond with sufficient security in the sum of $500 to keep the peace for five years towards his wife and all other good citizens, and then to be discharged according to law. And at this term the case was argued by the Attorney General for the State , and

Mr. J. A. Gilmer, for the defendant.

READE, J.

“Excessive bail should not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” Const. Art. I § 14. This is a provision in our State Constitution and in the Constitution of the United States, and is a copy of the English Bill of Rights.

The defendant was indicted for an assault and battery upon his wife, and was convicted and sentenced to imprisonment in the County jail for the space of five years, and at the expiration thereof, to give security to keep the peace for five years in the sum of $500 with sureties. Being unable from poverty to appeal, he files his petition in this Court for a certiorari to bring up the case for review, upon the ground that the sentence was violative of the Constitution, in that, it imposes upon him “cruel and unusual punishment.”

We have no information of the particulars of the charge against him except what he states in his petition. He states that while in a passion and under the influence of drink, he whipped his wife with a switch with such severity as to leave the marks for two or three weeks, and that he kicked her once, and that he had whipped her before, but not with the same severity, and that when brought to trial he pleaded guilty and submitted.

Taking that statement to be true, it would seem that he is a bad man, and not likely to have much of the public sympathy. And it is not unnatural that His Honor should have been moved to some severity against him. But still there are two questions for us to determine,--first, is the sentence of the Court unconstitutional; and, second, is it a matter which we can review?

In State v. Miller. 75 N. C. 73, which was an assault with intent to kill, the defendant was sentenced to five years imprisonment in the County jail. A new trial was given on other grounds, and it was not necessary that we should decide whether the punishment was lawful, but we clearly intimated our opinion that it was not. We stated that the oldest member of this Court did not remember an instance where any person had been imprisoned five years in a County jail for any crime however aggravated. And no instance was cited at the Bar, in the argument of that case, or this, although inquiry was made of the Bar, of such a term of imprisonment. We have examined our Rev. Code which was prior to our penitentiary system and to our Constitution of 1868, when imprisonment was altogether in the County jails, and unless we have inadvertently overlooked some crime, there was none, the punishment whereof was for so long a time. In many cases the punishment was specified; in others, it was not to be less than so and so; in others, not exceeding so and so; and in others, at the discretion of the Court; these last being generally small offences where it was not usual to punish much; and to cover all cases of felony where the punishment was not specific, there was the following provision: “Every person who shall hereafter be convicted of any felony for which no specific punishment shall be prescribed by statute, and which is now allowed the benefit of clergy, shall be imprisoned at the discretion of the Court not exceeding two years; or if the offence be infamous, the Court may also sentence the convict to receive one or more public whippings, to stand in the pillory, or pay a fine, regard being had to the circumstances of each case.” Rev. Code, ch 34, § 27.

And in regard to misdemeanors, where the punishment was not specific, they were to be punished as at common law. Rev. Code, ch. 34, § 120.

So it appears that in clergyable felonies however aggravated, imprisonment was limited to two years in all cases where the punishment was not specific; and it has escaped our attention if in any case imprisonment was prescribed exceeding two years, except in the cases of embezzlement by the State Treasurer, and in counterfeiting and forgery, where it might be three years. It would seem to be clear that what is greater than has ever been prescribed or...